Presley v. Pepperidge Farm, Inc. (356 F. Supp. 2d 109, 2005)

Citations

356 F. Supp. 2d 109

Full opinion text

RULING ON THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COVELLO, District Judge.

This is .an action for damages and equitable relief brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended by the Civil Rights Act of 1991 (“Title VII”), and Conn. Gen. Stat. § 46a-60 et seq. The plaintiffs, Twanya Presley and Sofia Tsharides, allege that their former employer, Pepper-idge Farm, Inc., and its supervisor, Robert Arocho, subjected them to a gender hostile working environment and sexual discrimination. In addition, Presley alleges that the defendants retaliated against her for complaining of sexual harassment in the workplace. Both plaintiffs also allege violations pf common law precepts concerning negligent misrepresentation, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment, arguing that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law. The issues presented are: 1) whether the plaintiffs have raised a genuine issue of material fact that the defendants subjected them to a hostile work environment; 2) whether Presley has raised a genuine issue of material fact that the defendants retaliated against her for complaining of sexual harassment in the workplace; 3) whether the plaintiffs have raised a genuine issue of material fact that the defendants subjected them to gender based discrimination; 4) whether the plaintiffs have raised a genuine issue of material fact that Pepperidge Farm’s company handbook or anti-harassment policy contained negligent misrepresentations; 5) whether the plaintiffs have raised a genuine issue of material fact that Pepperidge Farm’s actions amount to a civil conspiracy; 6) whether the plaintiffs have raised a genuine issue of material fact that the defendants intentionally inflicted emotional distress on them; and 7) whether the plaintiffs have raised a genuine issue of material fact that the defendants negligently inflicted emotional distress on them.

For the reasons set forth herein, the court concludes that: l)(a) Presley has raised a genuine issue of material fact that the defendants subjected her to a gender hostile work environment; (b) Tsharides has failed to raise a genuine issue of material fact that the defendants subjected her to a gender hostile work environment; 2) Presley has failed to raise a genuine issue of material fact that the defendants retaliated against her for complaining of sexual harassment in the workplace: 3)(a) Presley has raised a genuine issue of material fact that the defendants subjected her to gender based discrimination; 3)(b) Tshar-ides has failed to raise a genuine issue of material fact that the defendants subjected her to gender based discrimination; 4) the plaintiffs have failed to raise a genuine issue of material fact that Pepperidge Farm’s company handbook or anti-harassment policy contained negligent misrepresentations; 5) the plaintiffs have failed to raise a genuine issue of material fact that Pepperidge Farm’s actions amount to a civil conspiracy; 6) the plaintiffs have failed to raise a genuine issue of material fact that the defendants intentionally inflicted emotional distress on them; and 7) the plaintiffs have failed raise a genuine issue of material fact that the defendants negligently inflicted emotional distress on them. Accordingly, the defendants motion for summary judgment is granted in part and denied in part.

FACTS

Examination of the amended complaint, affidavits, pleadings, Local Rule 56(c) statements and exhibits accompanying the motion for summary judgment, and the responses thereto, disclose the following undisputed, material facts. The defendant, Campbell Soup Company, is a corporation authorized to transact business within the State of Connecticut through its subsidiary, the defendant, Pepperidge Farm, Inc. Pepperidge Farm employed the co-defendant, Roberto Arocho, since 1979 in its Norwalk plant. Arocho was a supervisor there for approximately ten years. At all relevant times, the plaintiffs, Twan-ya Presley and Sofia Tsharides, were residents of the state of Connecticut and worked at Pepperidge Farm’s facility in Norwalk, Connecticut.

A. Pepperidge Farm’s Anti-Harassment Policy

Throughout the time that Presley and Tsharides worked at Pepperidge Farm, the company had an anti-harassment policy with complaint procedures. All versions of the policy prohibit any kind of sexual harassment, instruct employees to whom they can complain, assure the employees that the company will take prompt and appropriate action, promise confidentiality, and ensure that employees will not be penalized or retaliated against for filing a complaint. The company posted written copies of the policy in multiple locations in the plant where Presley and Tsharides worked. Human resource officials walked the floor of the plant to make themselves more accessible to employees. The company also informed newly hired employees of the policy during their orientation.

B. Presley’s Claim

On August 28, 1996, Pepperidge Farm hired Presley. In February 1998; Presley resigned. In June 1999, Pepperidge Farm rehired Presley as a temporary employee in the bread department. In December 1999, Presley became a full-time employee as a production substitute in the bread department. In early 2000, Presley switched from the night shift to the day shift, and Arocho became her supervisor. From June 1999 to mid-July 2001, Arocho did not say or do anything to Presley that she considered inappropriate.

From mid-July 2001 to. late August 2001, Presley alleges that Arocho committed the following acts which she argues amounts to sexual harassment. In mid-July 2001, Ar-ocho touched Presley’s hand and told her that she was attractive and that she had “pretty hair.” At the time, however, Presley admits that she did not find this incident to be offensive. On August 2, 2001, Arocho told Presley that she had nice legs. Presley told Arocho that she was uncomfortable with that comment, and that she would pursue a complaint if this conduct persisted. Arocho responded by telling Presley that she was not in good standing with the company because she had previously filed a worker’s compensation claim. On August 3, 2001, Arocho told Presley that her friendship with several of the men at the plant could bring her financial gain due to her attractive physical attributes. Presley felt this statement insinuated that she was a prostitute of some sort. Later that same day, Arocho summoned Presley to his office, grabbed his crotch area, and asked Presley if she “wanted any of this.” Between August 3, 2001 and August 15, 2001, Arocho would gaze at Presley in a leering manner. On August 15, 2001, Aro-cho warned her that fifty-three people could complain to human resources about him and nothing would ever happen to him. Later that same date, Arocho touched Presley on her shoulder and smiled.

There is a dispute between the parties as to whether Presley told Donald Miller, a supervisor, about Arocho’s alleged sexual harassment. On August 3, 2001, Presley spoke with Miller. Presley contends that she told Miller about Arocho’s alleged conduct that had occurred earlier that day. Specifically, Presley testified during a deposition to the following:

[Question] — And then on the 3rd when this thing happened with Mr. Arocho grabbing his genitals, did you tell anybody else on August 3rd about what happened?

[Answer] — I didn’t tell no one that day except Donald Miller what was going on.

[Question] — And then you went back to him later in the day, did you tell him what Mr. Arocho had done on the 3rd?

[Answer] — That’s correct, yes.

In contrast to Presley’s contentions, Paul Macionus, Pepperidge Farm’s human resources manager, testified during a deposition that when he interviewed Miller during the investigation, Miller stated that Presley told him only that she was “uncomfortable” around Arocho. Miller also allegedly told him that Presley did not specify what made her uncomfortable, nor did she make any allegations of sexual harassment.

Despite the dispute as to details of this conversation, it is undisputed that Miller told Presley to report any harassment to the human resource department, and that Presley told Miller that she had handled the situation. It is also undisputed that Miller did not report Presley’s statements to human resource officials.

It is not clear from the facts before the court what Miller’s duty was if Presley did tell him about Arocho’s alleged sexual harassment. Presley contends that Miller had an obligation to report inappropriate conduct to the human resources department in accordance with the company’s anti-harassment policies. Pepperidge Farm’s anti-harassment policies do state that employees can report allegations of harassment to a supervisor, but they do not state what a supervisor’s duty is once he or she receives such a report.

C. Promotion Opportunity

In August 2001, there was an opening for a quality assurance technician position. All applicants were initially interviewed by Vanessa Diggs, a supervisor in quality assurance and friend to Presley. Diggs selected the top three candidates to interview with Steven White, a manager in the quality assurance department. The top candidates were Presley, Andy Saltour-ides, and Nick Savopoulos. Saltourides and Savopoulos also participated in a “day-in-the-life” exercise where they performed certain functions associated with the position, so that White could evaluate their performances. Presley did not engage in the “day-in-the-life” exercise because she had previously performed the same functions while on a modified/light duty assignment in the quality assurance department.

On or about August 31, 2001, Presley interviewed with White for the position. Prior to the interview, Presley spoke with Diggs. Diggs secretly provided Presley with the interview questions in advance and told Presley that she was a “shoe in” for the position. Despite Presley’s advance knowledge of the questions, White chose Saltourides for the position. According to White, Saltourides had some college education and well developed technical computer skills. White testified during a deposition that he chose Saltourides because his level of motivation and overall performance in the quality assurance department far surpassed that of the other two candidates. Specifically, White testified that Saltourides entered data into the computers with much more efficiency and ease than the other candidates, and he also discussed ideas with White on how to improve the process to make it even more efficient for the company. White further testified that he was not confident that Presley would be able to perform all the duties that the position required because of her prior performance in the quality assurance department, as well as her lack of higher education, including a lack of math and computer skills.

Presley alleges that Arocho sent a negative recommendation to the quality assurance department that caused White to decline to hire her for the position. Specifically, Presley alleges that, after the interview with White, Diggs told her that her application to quality assurance contained a negative recommendation from Arocho. White gave deposition testimony, however, that he did not consult Arocho regarding any of the candidates, including Presley.

During the same conversation with Diggs, Presley told Diggs about Arocho’s alleged harassment. Diggs then shared Presley’s allegations with White. White then called Macionus to discuss the allegations. That same day, August 31, 2001, White and Diggs met with Macionus, whereby Diggs recounted her conversation with Presley.

D. Internal Investigation

On Tuesday, September 4, 2001, the first day back at the plant after the Labor Day holiday weekend, Macionus and Maritza Allende, an employee relations manager, commenced an investigation of Presley’s allegations. In connection with their investigation, Macionus and Allende interviewed Presley. During the interview, Macionus told Presley that Pepperidge Farm had no tolerance for sexual harassment, explained the anti-harassment policy to her, and assured her that Allende and he would conduct a fulL investigation and then inform her of their findings. The officials also removed Presley from Aro-cho’s day-to-day supervision during the investigation. On September 5, 2001, Ma-cionus and Allende interviewed Arocho. During that meeting, Macionus and Allende reviewed with Arocho the anti-harassment policy, as well as the Equal Employment Opportunity policy and the violence in the workplace policy. They also reviewed each of Presley’s allegations with Arocho and told him that under no circumstances would Pepperidge Farm tolerate any type of harassing behavior. They also informed Arocho that Pepper-idge Farm would not tolerate any type of retaliation. Macionus told Arocho that if Pepperidge Farm found him to have violated any of these policies, the consequences would be severe, up to and including termination of his employment. According to the defendants, Arocho affirmatively and credibly denied all of Presley’s allegations. Macionus and Allende also interviewed other witnesses that Presley identified, namely, Donald Miller, Juan Martinez, and Spencer Peeples. Based, on the information from their investigation, Macionus and Allende were unable to corroborate any of Presley’s allegations and arrived at an inconclusive result.

On Friday, September 7, 2001, Macionus and Allende reported the results of the investigation to Presley. When Macionus and Allende reported the results of the investigation to Presley, they told her that if she had any further concerns, she should contact them immediately. They also told her that Pepperidge Farm would not tolerate any kind of retaliation against her. While Presley alleges that Pepperidge Farm officials directed her to work with Arocho two weeks .later, Presley admits that the officials intervened soon after and provided her with re-assignment elsewhere in the company’s plant as she requested. On September 24, 2001, Macionus and Allende met with' Presley again to discuss the results of the investigation. Presley admits that, after the investigation, Arocho did not do anything sexual towards her again.

E. Promptness of the Presley Investigation

The prompt nature of Pepperidge Farm’s investigation is in dispute. Specifically, there is a dispute as to when Presley notified Macionus and Allende, that two other employees, Sofia Tsharides and Maria Giannakova, were potential witnesses in her case. Initially, Presley testified at her deposition that she did not notify Allende about Tsharides and Gian-nakova until at least the week after one of the meetings where Macionus and Allende discussed the results of their investigation. It is unclear from the record whether Presley was referring to the meeting which took place on September 7, 2001 or September 24, 2001. Nevertheless, Presley has more recently submitted a transcript of a tape recording of Allende, stating that she received a voice mail from Presley on September 5, 2001 which notified her of Tsharides and Giannakova. When confronted with the tape recording during a deposition hearing, however, Allende testified that Presley did not tell her about Tsharides and Giannakova until September 25, 2001. It is also unclear when Macionus and Allende then interviewed Tsharides and Giannakova. Allende gave deposition testimony that she interviewed both Tsharides and Giannako-va on September 25, 2001, which is the same day Allende alleges that Presley notified her. Tsharides testified during her deposition that Macionus and Allende interviewed her in early September 2001. It is undisputed that, however, when Ma-cionus and Allende did interview Tshar-ides and Giannakova, neither employee offered any information regarding Presley’s allegations. Instead, both employees had their own allegations against Arocho which the officials investigated and found to be unsubstantiated.

Presley alleges that the following incidents of harassment occurred after human resources conducted the investigation. On December 7, 2001, Arocho marked Presley tardy when Presley contends that she was not late. Arocho then told Presley that if she were marked tardy again, he would suspend her. As a result, Arocho required Presley to fill out a time sheet which accounted for her whereabouts in the company plant at all times for one week. Presley contends that this was unfair because no other employee was required to do so. Presley admits that when another employee informed an official that Arocho was requiring Presley to fill out a timesheet, the official immediately relieved her of that requirement. In March 2002, Presley received information that Arocho’s wife, who was also an employee at the plant, was making physical threats towards her for pursuing a sexual harassment complaint. Presley did not report any of these incidents to any higher level official in the company. Instead, in March 2002, Presley resigned from her employment with Pep-peridge Farm.

F. Tsharides’ Claim

In May 1999, Pepperidge Farm hired Tsharides. From the end of July 2001 to late August 2001, Tsharides alleges that Arocho committed the following acts which she argues amounts to sexual harassment. In or about the end of July 2001, Tsharides visited Arocho’s office one day. During this visit, Arocho rubbed both of her hands and told her that she “made him nervous.” Proximate to this time period, Arocho attempted to touch her knees and told her that he had the authority to do so because he was her supervisor. In early August 2001, Arocho approached Tsharides from behind, rubbed his foot against her calf, and uttered unintelligible comments. In August 2001, Arocho asked Tsharides if she wanted “to mess around” with him. Lastly, in late August 2001, Arocho approached Tsharides and told her that he wanted to have a “threesome” with her and one of her co-workers.

G. Promptness of the Tsharides’ Investigation

There is a dispute as to whether Pepper-idge Farm investigated Tsharides allegations of sexual harassment in a prompt manner. Specifically, Presley has submitted a transcript of a tape recording of Allende, stating that she received a voice mail from Presley on September 5, 2001 which notified her of Tsharides. When confronted with the tape recording during a deposition hearing, however, Allende testified that Presley did not tell her about Tsharides until September 25, 2001. It is unclear when Macionus and Allende interviewed Tsharides. Allende gave deposition testimony that she interviewed both Tsharides on September 25, 2001, which is the same day Presley notified her. Tshar-ides testified during her deposition that Macionus and Allende interviewed her in early September 2001.

It is undisputed that, however, when Macionus "and Allende did conduct an investigation of Tsharides’s allegations, Tsharides refused to name any witnesses to her allegations. As a result Macionus and Allende were able to interview only Tsharides and Arocho. During their interview with Arocho, Macionus and Allende reviewed the company’s anti-harassment policy with Arocho and stressed that Pep-peridge Farm would not tolerate sexual harassment of any kind. Ultimately, the officials found no corroborating evidence of Tsharides’s allegations and arrived at an inconclusive result.

Allende then reported the results of the investigation to Tsharides. At that time, Allende explained to her that no retaliation would be taken against her for making the complaints. Allende also told Tsharides that she should come back if she had any further concerns. It is undisputed that Tsharides did not report any further alleged harassment or make any complaints of retaliation. Instead, in March 2003, Tsharides resigned from her employment with Pepperidge Farm.

STANDARD

Summary judgment is appropriately granted when the evidentiary record shows that there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether the record presents genuine issues for trial, the court must view all inferences and ambiguities in a light most favorable the non-moving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). A plaintiff raises a genuine issue of material fact if “the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 “provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is not genuine issue of material fact.” Id. at 247-8, 106 S.Ct. 2505.

In opposing a motion for summary judgment, the “adverse party may not rest upon the mere allegations or denials of [its] pleading,” but must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; see D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998). “If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Fed.R.Civ.P. 56(d). “The mere verification by affidavit of one’s own conclusory allegations is not sufficient to oppose a motion for summary judgment.” Zigmund v. Foster, 106 F.Supp.2d 352, 356 (D.Conn.2000). Furthermore, “the mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient [to avoid the entry of judgment against the non-moving party]; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

DISCUSSION

1. Hostile Work Environment

A. Pervasive and Severe

The defendants argue that, “[i]n this circuit, ... courts have routinely held that conduct analogous to or more egregious than that alleged in this case was not sufficiently severe or pervasive to violate Title VII as a matter of law, even when engaged in by a supervisor.” The plaintiffs respond that “[i]n viewing the allegations set forth in [the] complaint in their totality and in a light most favorable to them, coupled with the evidence as set forth in this objection, this [c]ourt cannot conclude as a matter of law that Arocho’s conduct was not so severe and pervasive as to alter the terms and conditions of [the] plaintiffs’ employment for the worse.”

“The Supreme Court has held that Title VII is violated ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir.2004) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir.1998) (same). “The test for ‘hostile work environment’ has both an objective and a subjective component: ‘A work environment will be considered hostile if a reasonable person would have found it to be so, and if the plaintiff subjectively so perceived it.’ ” Mormol, 364 F.3d at 58. “Whether a reasonable person would find a given work environment to be hostile depends on the totality of the circumstances; ‘[considerations include: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.” Id.

a. Pervasiveness

The Second Circuit has held that, “[a]s a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002); see also Mormol, 364 F.3d at 59 (relying on Alfano in deciding pervasiveness). In Mormol, the Second Circuit held that six incidents occurring within the timespan of one month were “far from being pervasive,” stating that the incidents “were few and occurred within a short span of time.” Id. at 59-60.

Similar to Mormol, the alleged harassment in the present case consists of several isolated incidents which took place over the timespan of about one month. Presley alleges that seven incidents occurred during August 2001, and two incidents occurred during the first week of December 2001. Tsharides alleges that five incidents occurred from the end of July 2001 to the end of August 2001. Furthermore, even though Presley worked for Pepperidge Farm from 1996 to 2002, and Tsharides worked for Pepperidge Farm from 1999 to 2003, both plaintiffs admit that Arocho did not harass them at any other time during their periods of employment. Consequently, because the alleged incidents in the present case are similar in frequency and duration to those in Mor-mol, the court concludes that neither plaintiffs’ allegations of sexual harassment are pervasive.

b. Severity

Where there is a lack of pervasiveness, the allegations of sexual harassment must be “extraordinarily severe” for a plaintiff to prove a hostile work environment. Mormol, 364 F.3d at 59; see also Quinn, 159 F.3d 759, 768 (2d Cir.1998) (stating “where the conduct is sufficiently severe, it may alter the plaintiffs conditions of employment without repetition”). In Mormol, the plaintiff, Mormol, brought a hostile work environment claim against her supervisor, Ziermann, based on the following alleged incidents which occurred within the timespan of about one month. 364 F.3d at 56. On December 27, 1999, Ziermann told Mormol that he would not approve her vacation request if she did not have sex with him. Id. at 55. On or about the same day, Ziermann also offered to pay her for hours that she had not worked if she agreed to have sex with him. Id. Mormol rebuffed all such advances from Ziermann. Id. Later in the month, Zier-mann forced Mormol to return prematurely from her vacation for no apparent reason. Id. Specifically, Ziermann telephoned Mormol during her vacation, telling her that, if she did not return early from her vacation, she would be transferred or fired. Id. On January 22, 2000, the day she returned from work, Ziermann gave Mormol a note which stated that, if she agreed to have sex with him, he would give her money, make her a full-time employee while permitting her to work part-time and simply punch her card as if she were working full time, and take her on vacations and to a fitness club. Id. Mormol once again decline his offers. Id. The next week, Ziermann allowed Mormol to work only on three days when Mormol claimed that he previously promised that she could work on seven days. Id. On January 23, 2000, Ziermann also “wrote up” Mormol for being five minutes late from a break and added a hand written statement on the disciplinary notice which stated that the next “writeup” would result in suspension or termination. Id. at 55-56. On January 24, 2000, Mormol reported Ziermann’s conduct to warehouse management and an investigation began. Id. at 56. On January 26, 2000, Costco suspended Ziermann and ultimately fired him on February 3, 2000. Id. The Second Circuit concluded that these incidents were “far from being pervasive” because the incidents “were few and occurred within a short span of time.” Id. at 59. The court also concluded that the harassment alleged in this case was not sufficiently severe to overcome its lack of pervasiveness. Id. at 59-60. As a result, the Second Circuit affirmed summary judgment in favor of the defendants. Id. at 60.

Likewise, in Quinn, the Second Circuit affirmed summary judgment in favor of the defendants based on similar reasoning to the court’s decision in Mormol. See Quinn, 159 F.3d 759, 768 (2d Cir.1998). In Quinn, the plaintiffs hostile work environment claim rested on two allegations against her supervisor: “(1) that he told Quinn she had been voted the ‘sleekest ass’ in the office and (2) that, on another occasion, he ‘deliberately touched [Quinn’s] breasts with some papers that he was holding in his hand.’ ” Id. The Second Circuit held that “[t]hough the two incidents in question ... are obviously offensive and inappropriate, they are sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded Quinn’s work environment.” Id. The court also held that “[n]or are these incidents, together or separately, of sufficient severity to alter the conditions of Quinn’s employment without regard to frequency, or regularity.” Id.

i. Tsharides’ claim

Tsharides’s hostile work environment claim against Arocho consists of the following allegations. In July 2001, Aro-cho rubbed her hands and told her that she made him nervous. During this same period of time, Arocho attempted to touch her knee and told her that he had the authority to do so because he was her supervisor. In early August 2001, Arocho briefly rubbed his foot against her calf and made unintelligible comments. During the middle of August 2001, Arocho asked Tsharides if she wanted to “mess around.” At the end of August 2001, Arocho told her that he wanted to “have a threesome” with her and one of her co-workers.

Arocho’s statements of his desire to “mess around” and “have a threesome” with Tsharides and his statements that she “made him nervous” and that he had the authority to attempt to touch her knee because he was her supervisor are not more severe, than the sexual offers in Mor-mol. In Mormol, the supervisor made several direct sexual offers to the plaintiff and conditioned such offers with threats of negative employment actions if she refused and beneficial employment actions if she agreed. Mormol, 364 F.3d at 55. Aro-cho’s sexual statements are not more severe than Ziermann’s sexual offers because they were not conditioned with work-related threats or rewards.

Additionally, Arocho’s actions of touching and attempting to touch Tsharides are not more severe than the touching alleged in Quinn. In Quinn, Quinn’s supervisor, Fahey, . deliberately touched Quinn’s breasts with some papers that he was holding in his hand. Quinn, 159 F.3d at 762-763. In the present case, Arocho rubbed Tsharides’s hands, attempted to touch her knee, and briefly rubbed his foot against her calf. A woman’s breasts are a more private and intimate area than her hands, knee, or calf; consequently, an unwanted deliberate touching of that area is more offensive and, therefore, more severe.

Arocho’s alleged conduct toward Tshar-ides is not more severe than the alleged conduct of the defendant-supervisors in Quinn and' Mormol, where the Second Circuit affirmed summary judgment in favor of the defendants. Consequently, the court likewise grants summary judgment in favor of the defendants as to-Tsharides’s hostile work environment claim because Arocho’s conduct is not sufficiently severe as • a matter of law to overcome its lack of pervasiveness.

il. Presley’s claim

Presley’s hostile work environment claim against Arocho consists of the following allegations. In July 2001, Arocho touched Presley’s hands and told her that she was attractive. On August 2, 2001, Arocho summoned Presley to his office and told her that she had nice legs and other attractive attributes. At the time, Presley told Arocho that she was uncomfortable with those comments, and that she would file a complaint if this type of behavior persisted. Arocho responded by telling her that she was not in good standing with the human resources department or the company because of her previous worker’s compensation claim. On August 3, 2001, Arocho told Presley that her friendship with men at the plant could get her money because she was pretty. Presley felt this statement insinuated that she was a prostitute of some sort. That same day, while Presley was in Arocho’s office, Arocho grabbed his genital area and asked Presley if she wanted “any.” On August 15, 2001, Arocho told Presley that fifty-three people could complain to the human resource department, and nothing would ever happen to him. Presley claims this comment made her feel humiliated and denigrated. Later that day, Arocho briefly put his hand on her shoulder and smiled, which Presley states she found taunting. On or about August 31, 2001, Presley learned from Diggs that Arocho had given a negative recommendation to the quality assurance department concerning Presley while she was applying for a position in that department. Steven White, the manager of the quality assurance department, however, testified that he made his hiring decision based on his own objective criteria and did not consider Arocho’s alleged negative recommendation. On December 7, 2001, Arocho marked Presley tardy when Presley contends that she was not late. Arocho then told Presley that if he marked her tardy again, he would suspend her. As a result, Arocho required Presley to fill out a time sheet which accounted for her whereabouts in the company plant at all times for one week. Presley contends that this was unfair because the company did not require other employees to do so. In March 2002, Presley received information that Arocho’s wife, who was also an employee at the plant, was making physical threats towards her for pursuing a sexual harassment complaint.

Presley’s allegations of Arocho’s conduct are arguably more severe than the plaintiffs allegations of her supervisor’s conduct in Mormol. First, while the supervisor in Mormol made several work-related threats, Presley alleges that Arocho sent a negative recommendation to the quality assurance department while she was applying for a position there. Although White testified that he did not consider this recommendation when he chose another candidate for the position, Presley contends that Diggs, a supervisor in the quality assurance department, told her that Arocho’s negative recommendation was in a file with the rest of the information for White to consider. Consequently, there are issues of fact that are either in dispute or unresolved as to Arocho’s motivation and grounds for sending the negative recommendation, and as to the effect the negative recommendation had on Steven White’s decision not to hire Presley for the position. Viewing the evidence in a light most favorable to Presley, the court holds that a reasonable juror could find, in light of Arocho’s other conduct toward Presley, that Arocho sent a negative recommendation about Presley because of her gender, and not based on merit. A reasonable juror could further find that Aro-cho’s negative recommendation caused White not to hire her for the position. If the jury were to make such findings, Aro-cho’s negative recommendation would be arguably more severe than the work-related threats in Mormol because Arocho did more than threaten by taking action which may have cost Presley the position in the quality assurance department.

Presley’s other allegations are also arguably more severe than the plaintiffs allegations in Mormol. Even though Zier-mann’s sexual offers in Mormol were conditioned with work-related threats and benefits, Arocho’s sexual offer where he grabbed his crotch in front of Presley is more lewd and obscene and, consequently, is arguably more severe.

Arocho’s responses to Presley that she was not in good standing with the company because she filed a worker’s compensation claim and that fifty-three people could complain to human resources about his actions and nothing would happen to him are arguably more severe than Ziermann’s actions of not allowing Mormol to work extra hours for one week. A reasonable juror could find that Arocho was lying when he made those statements in an attempt to discourage Presley from complaining about his behavior to the proper authorities within the company. Accordingly, Arocho’s statements are arguably more severe than Ziermann’s actions because they were directly intended to prevent the remedy of the kind of behavior Title VII is designed to protect against in the employment context.

Both Presley and the plaintiff 'in Mor-mol complained about being marked tardy on one occasion. While Ziermann’s subsequent actions of threatening to suspend or fire Mormol if he marked her tardy again may be more severe than Arocho’s" subsequent actions of requiring Presley to fill out a time sheet of her whereabouts in the plant for a week’s time, Presley alleges that Arocho marked her tardy for no reason while Mormol admitted to being late. Consequently, Arocho’s actions are more unjustified and arguably more severe than Ziermann’s actions.

Because many of Presley’s allegations are arguably more severe than the plaintiffs allegations in Mormol, a genuine issue of material fact exists as to whether Arocho’s conduct toward Presley, taken together, was severe enough to overcome its lack of pervasiveness. As a result, the court denies the defendants’ summary judgment motion as to Presley’s hostile environment claim.

in. Employer Liability

To succeed in her hostile work environment claim against Pepperidge Farm, Presley must show not only that she experienced severe and pervasive harassment, but also that “a specific basis exists for imputing the objectionable conduct to [Pepperidge Farm].” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002). Under Title VII, an employer is strictly liable for a supervisor’s sexual harassment of an employee where the harassment culminates in a tangible employment action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-763, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca, Raton, 524 U.S. 775, 790, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

B. Presley—Tangible Employment Action

Pepperidge Farm argues that “[a]s a matter of law, none of [Presley’s] allegations are sufficient to establish a tangible employment action.” Presley responds that each of the following allegations can qualify as tangible employment actions: 1) Aroeho’s negative evaluation sent to the quality assurance , department, which caused Steven White, the manager of the department, to deny her the promotion/reassignment; 2) Arocho marking her tardy without cause; 3) Arocho making her fill out a time sheet for one week; 4) Arocho threatening to suspend her if he marked her tardy again; and 5) Pepper-idge Farm constructively discharging her.

“A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. at 761, 118 S.Ct. 2257 (1998). “Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Id. at 762, 118 S.Ct. 2257. “A tangible employment decision requires an official act of the enterprise, a company act.” Id. “The decision in most cases is documented in official company records and may be subject to review by higher level supervisors.” Id. “A tangible employment action in most cases inflicts direct economic harm, but there is no requirement that it must always do so.” Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir.2004) (internal quotations and citations omitted). “For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.” Ellerth, 524 U.S. at 762, 118 S.Ct. 2257.

Viewing the evidence in a light most favorable to Presley, the court concludes that there is a genuine issue of material fact as to whether Arocho’s negative evaluation is a tangible employment action. Presley alleges that Arocho sent a negative written evaluation concerning her, which was untrue, to the quality assurance department while she was applying for a position in that department. Presley further alleges that Arocho’s negative evaluation caused White, the manager of the department, not to hire her for the position. White testified, however, that he made his decision based on his own objective criteria and did not consider Arocho’s alleged negative evaluation. In response, Presley contends that Diggs, a supervisor in the department, told her that she saw Arocho’s negative evaluation in a file with the rest of the information to be reviewed by White before her interview.

The court holds that Arocho’s negative recommendation can qualify, as a matter of law, as a tangible employment action because a reasonable juror could find that it satisfies all the criteria that the law requires. First, a reasonable juror could choose to believe the testimony of Diggs that Arocho’s negative recommendation was in Presley’s file for White to consider. Based on that finding, a reasonable juror could then infer that White did consider the recommendation and that it caused him to decline to hire Presley. If a reasonable juror found that Arocho’s recommendation caused White to decline to hire Presley, it would constitute a significant change in Presley’s employment status. Cf. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 789 (6th Cir.2000) (holding that a supervisor’s downgraded evaluation of the plaintiff did not constitute a tangible employment action because the plaintiff did not allege that her employer unfairly denied her a promotion as a result of the evaluation). Second, a reasonable juror could find that Arocho was using his supervisory power that Pepperidge Farm gave him in order to evaluate Presley, a subordinate, when he sent the negative recommendation. If a reasonable juror were to find make these findings then Arocho’s negative recommendation would be an official act of Pepperidge Farm. Lastly, a reasonable juror could believe the testimony of Diggs that Arocho documented the negative recommendation and placed it into official company records. A reasonable juror could then draw the inference that White, a higher level official in the company, reviewed it. Because a reasonable juror could find that Arocho’s alleged negative recommendation satisfied all these criteria, there is a genuine issue of material fact as to whether it is a tangible employment action.

Presley’s other allegations, however, do not qualify as tangible employment actions. Specifically, Arocho’s actions of marking Presley tardy and requiring her to fill out a time sheet for one week, by themselves, do not constitute a significant change in employment status, and, consequently, neither qualifies as a tangible employment action. See Mormol, 364 F.3d at 58 (holding that a supervisor’s disciplinary notice did not constitute a significant change in employment status, in part, because it did not result in any further consequences to her). Additionally, Arocho’s action of threatening to suspend Presley if he marked her tardy again is not a tangible employment action because the threat was not conditioned upon Presley submitting to further sexual harassment, and an unfulfilled threat, by itself, is not enough. See Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 93 (2d Cir.2002) (stating that a threat is not a tangible employment action if the plaintiff is not subjected to further sexual harassment and the supervisor does not follow through with his threat).

Presley also alleges that Pepper-idge Farm constructively discharged her. Constructive discharge can qualify as a tangible employment action, if the plaintiff can prove: 1) the elements of constructive discharge, and 2) that an “official act” of the employer underlies the constructive discharge. Pennsylvania State Police v. Suders, — U.S. -, -, 124 S.Ct. 2342, 2855, 159 L.Ed.2d 204 (2004). Presley’s allegation that Pepperidge Farm constructively discharged her does not qualify as a tangible employment action because Presley cannot prove the requisite elements of constructive discharge as set forth infra.

Constructive Discharge

The defendants argue that Presley “has failed to establish any of the elements of a constructive discharge claim.” Presley responds that the totality of the circumstances creates a genuine issue of material fact as to whether Pepperidge Farm constructively discharged her.

“Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2000). “Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. To prevail on a claim of constructive discharge, a plaintiff must also show “deliberate action on the part of the employer.” Id. at 74.[S]omething beyond mere negligence or. ineffectiveness is required. Id.

In Whidbee, the Second Circuit affirmed a district court order granting summary judgment for an employer on the issue of constructive discharge because the plaintiff-employees failed to prove a deliberate action on the part of their employer. Id. at 74. In this case, a co-worker, Richard Corliss, allegedly harassed two plaintiff employees on many occasions. Id. On June 8, 1998, the plaintiffs told their general-manager, Patrick Grable, about the alleged harassment. Id. Grable responded by telling the plaintiffs that he would speak to Corliss, but the plaintiffs would have to handle the problem themselves. Id. at 67. Grable did not speak with Cor-liss that day. Id. The next day, June 9, Corliss allegedly harassed the plaintiffs again, and the plaintiffs immediately reported it to Grable. Id. Grable assured the plaintiffs that he would speak with Corliss, but, in fact, he did not speak with Corliss. Id. On June 11, Corliss continued to harass the plaintiffs, so they immediately reported the incident to their supervisor, Tina Hanley. Id. On June 12, Hanley reported the incident to Grable. Id. That day, one of the plaintiffs asked Grable to meet with her, but Grable denied her request, stating that he was too busy. Id. Later that day, Grable did meet with Cor-liss and gave him a verbal warning. Id. On June 16, the plaintiffs had a meeting with Grable to report additional harassment. Id. Grable responded by telling the plaintiffs that “he can’t control Corliss’s mouth,” the plaintiffs should approach Corliss themselves, “he does not know how to deal with the problem and does not want to deal with it because it is too much for him”, and if talking to Corliss does not solve the problem, then the plaintiffs have to leave. Id. (internal quotations omitted). During the meeting, however, Grable also said that he and the plaintiffs should meet with Corliss, and that Corliss either has to stop the harassment or he has to quit. Id. Grable also stated that he needed to do some research to find out how to stop this. Id. After the meeting, Grable issued Cor-liss a written warning which stated that any further offensive conduct would result in disciplinary measures, up to and including termination. Id. at 68. Despite the warning, Corliss continued to harass the plaintiffs. Id. On June 26, one of the plaintiffs met with Grable, Corliss, and another member of management. Id. Cor-liss apologized to the plaintiff. Id. Grable told Corliss that if he continued to harass the plaintiffs, Grable would fire him. Id. On June 26, 1998, both of the plaintiffs resigned.

In affirming summary judgment for the defendant-employer, the Second Circuit held that even if “[c]ertain statements by Grable ... might be seen as evincing a lack of concern about the plaintiffs’ situation!,]” the “evidence did not support an inference that her employer intended to create intolerable working conditions.” Id. at 74. Further, the court explained that an employer’s “demonstrated interest in retaining the plaintiffs” militated against a finding of constructive discharge. Id.

Following the logic of the Second Circuit’s decision in Whidbee, the court concludes that there is no evidence to support an inference that Pepperidge Farm intended to create intolerable working conditions for Presley. It is undisputed that Pepperidge Farm: 1) investigated Presley’s allegations; 2) conferred with Arocho concerning the anti-harassment policies; 8) admonished Arocho that if he was found to have engaged in harassment, he could be punished with job termination; 4) removed Presley from Arocho’s day to day supervision; and 5) based on Presley’s request, transferred her to a different work site in the plant. There is no evidence that Pepperidge Farm intended to create intolerable working conditions for Presley and, quite to the contrary, the above cited evidence points to a finding that Pepper-idge Farm exhibited an interest in retaining her. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2000); see also Mack v. Otis Elevator Co., 326 F.3d 116, 128 (2d Cir.2003) (concluding that the plaintiff failed to provide evidence of deliberate action by her employer because her employer immediately began investigating the plaintiffs allegations of her supervisor’s harassment once the plaintiff notified them, and her employer offered to transfer the plaintiff to a position beyond the defendant-supervisor’s power).

To summarize, the court concludes that there is a genuine issue of material fact as to whether Arocho’s negative recommendation is a tangible employment action, however, Presley’s other allegations do not qualify, as a matter of law, as tangible employment actions.

C. Affirmative Defense

Employers are presumptively liable for a supervisor’s harassment of an employee. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. In the absence of a tangible employment action, however, an employer can avoid liability for a supervisor’s alleged harassment of a subordinate if it can prove, as an affirmative defense, “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm other wise.” Id.

Pepperidge Farm and Reasonable Care

Pepperidge Farm argues that they have satisfied the first prong of the affirmative defense because “no reasonable trier of fact could find that Pepperidge Farm failed to exercise reasonable care to prevent and correct sexually harassing behavior.” In support of this argument, Pepperidge Farm contends that “Pepper-idge Farm not only had an anti-sexual harassment policy in place at all times during [Presley’s] employment, but [that] Pepperidge Farm fully complied with that policy by conducting a prompt and thorough investigation of [Presley’s] complaints, after which [Presley] conceded that the alleged harassment ceased.”

Presley responds that the following allegations prove that Pepperidge Farm failed to exercise reasonable care to prevent and correct Arocho’s sexually harassing behavior: 1) Pepperidge Farm’s anti-harassment policy was unclear to employees because there were multiple versions of the policy in circulation at the time of Arocho’s conduct; 2) Donald Miller, a supervisor, failed to report Presley’s sexual harassment allegations to the human resource department which shows that Pepperidge Farm’s response was inadequate; and 3) Pepperidge Farm’s investigation was not done promptly because Macionus and Allende did not interview Tsaharides and Giannakova until twenty days after Presley notified Allende that they were potential witnesses.

In order to satisfy the first prong the affirmative defense, Pepperidge Farm must prove that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. Under this analysis, the court will first consider whether Pepperidge Farm had an anti-harassment policy with complaint procedures in existence at the time of the alleged harassment. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir.1999). It is undisputed that, throughout the time that Presley worked at Pepperidge Farm, the company had an anti-harassment policy with complaint procedures in existence. Pepperidge Farm posted written copies of the policy in multiple locations in the plant where Presley workéd. The company also inforfned newly hired employees of the policy during their orientation. Additionally, human resource officials walked around the floor of the plant to make themselves more accessible to employees.

Presley argues that Pepperidge Farm’s anti-harassment policy was unclear to employees because there were multiple versions of the policy in circulation at the time of Arocho’s conduct. The court is not persuaded by this argument because all versions of the policy before the court prohibit any kind of sexual - harassmeht, instruct employees to whom they can complain, assure that the company will take prompt and appropriate action, promise confidentiality, and ensure that employees will not be penalized or retaliated against for filing a complaint. In fact, Presley testified at a deposition hearing that she knew she could report allegations of sexual harassment to officials in the human resource department.

The court will also examine the actions the company took in response to the complaints that its employees reported. Id. at 295; Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64-65 (2d Cir.1998).

The Second Circuit has held that a supervisor’s failure to comply with the company’s reporting requirements is evidence tending to show that the company’s response was inadequate. Id. at 65. In Distasio, the plaintiff informed her supervisor on several occasions that one of her co-workers was sexually harassing her. Id. at 59. The company’s policy directed supervisors who receive a harassment complaint to: “inform the Human Resources Department of allegation of sexual harassment by employees or non-employees within 24 hours or reporting of the incident, and assist, as requested, with investigation of such allegations.” Id. at 64. The supervisor refused to inform company management of her allegations. Id. at 60. Consequently, the Second Circuit held that there was a genuine issue of material fact as whether the employer’s response was reasonable. Id.

In the present case, there is a dispute between parties as to whether Presley told Donald Miller, a supervisor, about Aro-cho’s alleged sexual harassment. On August 3, 2001, it is undisputed Presley spoke with Miller about Arocho. Presley contends that she told Miller about Arocho’s alleged sexual harassment. Specifically, Presley testified during a deposition to the following:

[Question] — And then on the 3rd when this thing happened with Mr. Arocho grabbing his genitals, did you tell anybody else on August 3rd about what happened?

[Answer] — I didn’t tell no one that day except Donald Miller what was going on.

[Question] — And then you went back to him later in the day, did you tell him what Mr. Arocho had done on the 3rd?

[Answer] — That’s correct, yes.

Despite the dispute as to details of this conversation, it is undisputed that Miller told Presley to report any harassment to the human resource department, and that Presley told Miller that she had handled the situation. It is also undisputed, however, that Miller did not report Presley’s statements to human resource officials.

Viewing the evidence in a light most favorable to Presley, the court holds that a reasonable juror could find that Presley did tell Miller about Arocho’s sexual harassment, and that Miller, as a supervisor, .had a duty to relay those allegations to the human resource department. Following the Second Circuit’s decision in Distasio, the court concludes that Miller’s failure to comply with the company’s reporting requirements is evidence tending to show that the company’s response was inadequate.

The prompt nature of Pepperidge Farm’s investigation is also in dispute. The following facts are not in dispute. On Friday, August. 31, 2001, Diggs and White notified Macionus and Allende of Presley’s sexual harassment allegations. On Tuesday, September 4, 2001, the first day back at the plant after the Labor Day holiday weekend, Macionus and Allende commenced an investigation of Presley’s allegations. On September 4, 2001, Macionus and Allende interviewed Presley. The officials also removed Presley from Arocho’s day-to-day supervision during the investigation. On September 5, 2001, Macionus and Allende interviewed Arocho. During that.week, Macionus and Allende also interviewed other witnesses that Presley identified, namely, Donald Miller, Juan Martinez, and Spencer Peeples. Based on the information, from their investigation, Macionus and Allende were unable to corroborate any of Presley’s allegations and arrived at an inconclusive result., On Friday, September 7, 2001, Macionus and Allende reported the results of the investigation thus far to Presley. On September 24, 200Í,. Macionus and Allende met with Presley again to discuss the results of the investigation.

There is, a dispute as to when Presley notified Macionus and Allende that two other employees, Tsharides and Giannako-va, were potential witnesses in her case. Presley has submitted a transcript of a tape recording of Allende, stating that Allende received a voice mail from Presley on September 5, 2001 which notified Allende of Tsharides arid Giannakova'. When confronted with the tape recording during a deposition hearing, however, Allende 'testified that Presley did not' tell her about Tsharides and Giannakova until September 25,2001.

It is also unclear when Macionus and Allende interviewed Tsharides and Gianna-kova. Allende gave deposition testimony that she interviewed both Tsharides and Giannakova on September • 25, 2001, the same day she claims that Presley notified her. Tsharides testified during her deposition that Macionus and Allende interviewed her in early September 2001.

It is undisputed, however; that when the officials did interview Tsharides and Gian-nakova, they questioned them about Presley, and neither employee offered any information regarding Presley’s allegations. Instead, both employees had their own allegations against Arocho which the officials investigated and found to be unsubstantiated.

Viewing the evidence in a light most favorable to Presley, the court concludes that a reasonable juror could find that Presley notified Allende about Tsharides and Giannakova on September 5, 2001, and that Macionus and Allende did not interview them until September 25, 2001. Whether a twenty day delay in interviewing these witnesses means that Pepperidge Farm’s investigation was no longer prompt is a ques